Tompkinson v. Muzzy

• Decision Date: 01 August 1891
• Citation: 2 Wash. 616,27 P. 456
• Parties: TOMPKINSON v. MUZZY. [1]
• Court: Washington Supreme Court

27 P. 456

2 Wash. 616

TOMPKINSON v. MUZZY. ^[1]

Supreme Court of Washington

August 1, 1891

Appeal from superior court, Spokane county.

Action by Lucy A. Tompkinson against Hiram N. Muzzy to set aside a deed. Decree for plaintiff, and defendant appeals. Modified and affirmed.

Turner & Graves and G. G. Ames for appellant.

Nash & Wakefield, for respondent.

STILES J.

The parties to this action were father and daughter. The appellant, Muzzy, about 1880, settled himself and family on government land on the opposite side of Spokane river from the then village of Spokane Falls. His family consisted of himself, his invalid wife, and five children, all of whom were of mature years. His other children had from time to time either married, or left home for the purpose of maintaining themselves. The respondent was then about 25 years of age, and a single woman. In intelligence she was rather below the average, and had had slight advantages of education, and little or no business experience. It was contended in her behalf at the trial of the cause that she was mentally incompetent, but we think, upon the whole, that it fairly appears from the record that there was no unusual weakness of intellect, but that lack of education was about all that would characterize her as different from ordinary women in her position in life. Her family were then poor, and she had been accustomed to doing the housework of the family. A somewhat unusual corpulency and shyness resulting therefrom seem to have rendered it probate that she would never marry. It is clear that for her entire support she then relied, and always expected to rely, upon her father. In return therefor she was content to remain at home nursing her sick mother, and doing the household work, leaving all matters of business wherein she had any interest to be attended to by her father. The appellant, soon after arriving in Washington, conceived great confidence in the future of Spokane Falls, and proceeded to acquire a body of land in that neighborhood, by exercising his homestead rights. He also caused the respondent to locate herself as a homesteader upon the land in question, in the fall of 1882. Her sister also located upon an adjoining quarter section. It is agreed by all parties that the lands entered upon consisted of a gravelly plain that was of practically little or no value for any purpose excepting as it might depend upon the future development of the village near the Falls. The nature of the soil rendered it totally unfit for cultivation. The appellant chose to acquire his own tract by residence thereon during the full term of five years; but in the spring of 1883, after having built for his daughter a fence around her tract, and a small house in which she kept up the necessary residence for about six months, he advised her to commute her homestead to a cash entry, and by so doing avoid the further necessity of living on the land. She had no means whatever with which to pay either the office fees, the cost of the improvements made upon her tract, or the sum of $400, which was the government price for the land. She stated, without contradiction, that in consideration of the improvements her father was to have the "back forty," and when the question of means with which to pay for her land came up her father suggested that she mortgage the place to secure it. At the same time her father was in need of money, and they joined in making a note to one Ollis for the sum of $1,500, which was secured by her giving a mortgage to Ollis for that amount on her tract. The money being thus procured, $400 of it was used to pay the government, and the remainder of it went to appellant's use. This mortgage was made by respondent against the advice of at least one of her brothers, who maintained that she should not thus burden her land for the sake of assisting her father, and that she ought to procure only the actual sum which she needed. She desired, however, to assist her father, and relied entirely upon his promise to see that the loan was repaid, and the mortgage canceled. She made her final proof in December, 1883, and in May, 1884, obtained her patent. This mortgage was satisfied on the 22d day of May, 1886, and on the 24th day of the same month, at the suggestion of her father, she executed another mortgage to one Jennison on the same land, for the sum of $1,200, the note being signed by herself and her father. On the 8th day of March, 1886, at the instance of her father, she executed a deed to one Turner, by which she conveyed 40 acres of her tract in consideration of $1,500. And on the 14th day of June following, also at her father's suggestion, she executed a deed to one Abernethy for another 40 acres of her land, for a like consideration of $1,500. These two sums of $1,500 were paid to her father in money by her grantees, and the amounts were retained by him. On the 15th day of June, 1886, for the expressed consideration of $1,000, she executed a deed to her father for the remaining 80 acres of her land. This $1,000 was not paid to her then, or at any other time, nor did she ever receive any portion of the $3,000 derived from Turner and Abernethy. From the time of the execution of the last- named deed until this action was commenced on the 16th day of December, 1889, the appellant has, therefore, been the legal owner of the 80 acres conveyed to him, with the exception that on the 10th day of September, 1887, he conveyed to the Spokane College a tract of about 15 acres, for which he received no substantial consideration, the conveyance being in the nature of a donation to that institution. The respondent now brings her suit to set aside the deed executed by her to her father for the 80 acres, with the exception of that portion of it conveyed to the Spokane College, and prays judgment against him for the $3,000 paid by Turner and Abernethy, and for the value of the 15 acres and upwards conveyed to the college.

The complaint set forth that up to the 15th day of June, 1886, since her patent, respondent was the owner of the tract. She alleged the relationship between herself and her father; that she was at all times since 1882 ignorant and wholly inexperienced in all matters of a business nature, and was accustomed to rely upon her father therein, and that he knew that she wad deficient in mental capacity and understanding, and wholly incompetent to transact anything of a business character requiring thought and consideration; that she was induced to settle upon and commute her tract by her father; that at her father's instance she had assisted him in borrowing the sums of money before mentioned, and that he had stated to her that to secure her for the repayment of the sums borrowed for his benefit he would give her a certain timber culture claim that he then held; and then followed this form of allegation: "(4) That on the 15th day of June, 1886, defendant, fraudulently taking advantage of plaintiff's said incapacity, of which defendant well knew, and of her implicit confidence and reliance in him on account of the close relation existing between them, procured her to sign a certain writing, without paying any consideration therefor, and which writing defendant falsely and fraudulently represented to be a mortgage on said above-described premises, to secure the payment of the aforesaid sum of twenty-six hundred dollars. (5) That plaintiff is informed and believes that the said writing is under seal, and is a deed of said premises, and conveys the same, or some interest therein, to the defendant, and that he intends to use the same for his own benefit, and to the prejudice of plaintiff, and that defendant has continually assured her ever since the making thereof that she had only executed a mortgage; that it was not until about one year thereafter that she was informed that instead of executing a mortgage she had executed a deed of said lands to her father; and plaintiff further avers that when she asked her father, the defendant, about it, he assured her that it was all right, that she should have her property free and unincumbered, and that he would attend to the matter, and see that everything was correct in respect thereof, and that he has repeatedly since that time assured her in most positive terms that her property was in no way incumbered excepting as aforesaid, and that he would see that the matter was all right; that by these false representations and assurances defendant sought to and did lull plaintiff into a sense of security concerning the same, and not until within the past six months has she become convinced that it is his intention to claim the same as his own property, and to swindle and defraud her out of the same, and that he claims said property in fee-simple by virtue of a deed executed by plaintiff, and that thereupon she took steps to examine into the matter," etc., with the result that she ascertained the deed to be of record in the office of the auditor of Spokane county. Then follows an allegation of the existence of the deeds to Turner and Abernethy, after which she alleges: "(7) That said defendant, her father, taking advantage of the confidence reposed in him by her, and of her total incapacity to transact business, and by fraud and misrepresentations, induced her to sign the papers and deeds as aforesaid, and received the considerations arising therefrom, and that she would not have signed and executed the same had she known their true meaning and effect, but that she did not know of the fraud that had been practiced upon her until about ten days ago, and when she was advised by her counsel in regard thereto." There are also proper allegations as to the conveyance of the tract to the Spokane College.

The answer contained a denial of those parts of the...